RE SOFIATUN

CAMP 240/2022, [2023] HKCA 1005

On Appeal From [2022] HKCFI 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 240 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 446 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  On 16 March 2022, DHCJ To (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim and dismissed her leave application (“the JR Decision”). Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  Even taking into account the General Adjournment Period which expired on 11 April 2022, the applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance (“CFI”)  on 26 April 2022 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 21 June 2022.

3.  On 12 July 2022, the applicant filed her summons in CAMP 240/2022 (“the Summons”)  in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 12 July 2022, the applicant lodged her written submissions on 25 July 2022.

5.  Under Order 59 r.14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Indonesia. She last arrived in Hong Kong on 11 February 2014 with permission to work as a foreign domestic helper.  After her employment was prematurely terminated on 19 March 2015, she did not depart and overstayed.  She was arrested by police on 19 August 2015.  On 1 September 2015, she raised her non-refoulement claim alleging that if refouled, she would be harmed or even killed by her ex-husband and two money lenders to whom she had failed to make repayments on two loans she had taken out.  The factual background of this case was succinctly summarised by the Judge at [8] – [11] of the JR Decision ([2022] HKCFI 765).

7.  By a Notice of Decision dated 28 December 2017, the Director of Immigration (“the Director”)  decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  and attended an oral hearing on 24 September 2018.  By its decision dated 1 November 2018, the Board dismissed the appeal.  For the reasons set out at [23] to [60], the Board found the applicant’s evidence was incredible.  Even on the applicant’s account of events, her alleged problems with her ex-husband and the loan sharks were private in nature with no state involvement, and she did not suffer any serious harm or injury. Further, the applicant only raised her non-refoulement claim after she was arrested by police for overstaying in Hong Kong which suggested that she is not a genuine asylum seeker.  In any event, relevant country of origin information suggested that there is reasonable state protection and internal relocation is a viable option.  For the aforesaid reasons, her non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 18 February 2019, the applicant filed a Form No. 86 but she did not name any proposed respondent.  The Judge, upon confirming with the applicant that she intended to apply for leave to judicially review the Board’s decision at the hearing, granted leave to her to amend her Form 86 accordingly.[5]

10.  In her supporting affirmation, she did not advance any grounds of her intended challenge and only repeated the factual allegations of her claim.

The JR Decision

11.  The applicant attended an oral hearing on 23 February 2022.  As the applicant did not advance any grounds to challenge the Board’s decision, in reply to the Judge’s request for submission, the applicant advanced the following grounds:

(1)  The Board is required to consider afresh the original decision and arrive at its own determination.

(2)  The Board’s decision is unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness.

(3)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirements.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The Board acted in a procedurally unfair manner in dealing with the appeal.

(6)  It is important to consider that life and limb are in jeopardy and it is the applicant’s fundamental human right not to be subjected to torture.

(7)  In dismissing the applicant’s appeal/petition, there is no indication that the Board had properly considered and assessed the applicant’s claim together with the supporting documents or considered the risk of violation of her right to life under BOR 2 risk.

(8)  The applicant will face hardship if refouled and the Board had significantly relied on source of news which is not officially recognized, or it is simply hearsay.

(9)  The characterisation of the appeal process is grounded in the consistent practice of the Board in treating each appeal/petition as a de novo hearing, whereby the Board is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings.  The established practice of the Board in this regard is either grounded and illustrative of its relevant obligations and/or in any case has induced a procedural expectation that a claim would be considered afresh under the applicable grounds.

(10)   The Board has relied on some cases which are outdated considering dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculation.

(11)   Although the applicant’s problems in her home country are very serious and she has submitted all the supporting documents, the Board did not take greater care and she was disappointed.

12.  The Judge found some of the grounds were not entirely comprehensible and asked the applicant to further explain and elaborate.  However, the applicant said that she did not understand the grounds and that they were prepared by someone for her but not on the basis of the information provided by her.[6]

13.  After due consideration of the Board’s decision and the applicant’s grounds of intended challenge, the Judge refused leave for judicial review for reasons set out in [20] - [28] of the JR Decision:

“Ground (1), (6)  and (9))– Statements of legal principle

20. Insofar as these grounds could be understood, they are statements of legal principle. There is no indication in what respects was the Board in breach of these principles. The Applicant was unable to clarify and give particulars. The Court could only bear these principles in mind in its overall examination of the Board’s Decision for errors in law, procedural unfairness or irrationality.

Ground (2)  – errors in law, procedural unfairness or irrationality; Ground (4)  – breach of greater duty of care owed to the unrepresented Applicant; Ground (5)  – procedural unfairness

21. These are un-particularized complaints. The Applicant was unable to give particulars of the errors, unfairness or irrationality. The Court could only bear these principles in mind in its overall examination of the Board’s Decision for errors in law, procedural unfairness or irrationality.

Ground (3)  – The Board unlawfully fettering its discretion

22. Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection. This could not be a valid ground for application for leave. If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss her appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. The Applicant was unable to give particulars as to how the Board unlawfully fettered its discretion. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (7)  – The Board failed to interact with the Applicant’s case

23. The Applicant gave no particulars as to how the Board had failed to interact with her case. The Board in fact assessed her claims on the basis of her case as asserted by her. In other words, the Board interacted “fully” with her case. It was only when applying the law to her case as she asserted that the Board found she is not entitled to protection under any of the grounds under the USM. There could be no valid complaint under this ground.

Grounds (8), (10), (11)  – Hardship if returned, the Board relying on outdated COI

24. These are challenges against the finding of fact by the Board which is a matter solely within the province of the Board. As explained above, the primary decision-makers in a claim for non-refoulement protection are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality.

25. An obvious basis of the Applicant’s complaint is the Board’s reliance on the COI when making its finding that state protection of a sufficient standard is available to prevent or minimise the risk and that internal relocation is available to enable the Applicant to avoid the risk altogether. The Applicant alleged that the COI are outdated, are hearsay and not officially recognised. The COI relied on by the Board are all from authoritative and credible sources, including Country Report on Human Rights Practices 2015 – Indonesia, Indonesia 2016 Crime and Safety Report 2014 and Report on International Religious Freedom of Indonesia published by the Department of States of the United States; The World Factbook for Indonesia published by the Central Intelligence Agency of the United States; Report from The Indonesian Corruption Eradication Commission (KPK), information from the website of Portal Nasional RI – Indonesia Police and Report by the International Organization for Migration (2014).

26. The information is contemporaneous and not outdated. Having regard to the nature of the information, it must contain an element of hearsay. The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information. The information is credible. Furthermore, the Board had carefully considered and weighed the information. As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc. It is a finding of fact solely within the province of the Board.

27. Other than a bald assertion of unreliability, outdated information and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention her failure to provide any publication contradicting these COI. This ground is a challenge of the Board’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality. The Court would consider this issue in its overall examination of the Decision.

Assessment of the grounds for judicial review

28.  As the Applicant has not advanced any grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  The Board found that the Applicant failed to discharge her burden of proving her fears and risks.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  Accordingly, the Applicant has no arguable grounds for her intended judicial review.”

Application for extension of time to appeal the JR Decision

14.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the CFI on 26 April 2022 for an extension of time to appeal.  That was dismissed by the Judge on 21 June 2022.  Hence, the Summons to this court.

Discussion

15.  In considering whether to extend time for appeal, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3) the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

16.  As for (1), the applicant was late by 2 weeks between the deadline for filing her appeal against the JR Decision and the summons filed in the CFI (taking into account the General Adjournment Period of the court).  Her delay was not short although it was not substantial. 

17.  As for (2), the reasons for the delay, the applicant explained in her supporting affirmation in the CFI that “because of Covid-19, I want to appeal but I did not come out of my home”.  As her explanation was in general terms and lacking in particulars, on 29 April 2022, the court directed her to file an affirmation or statement within 14 days of the directions to provide further details and particulars.  On 24 May 2022, the applicant lodged a letter in purported compliance with the directions but no details and/or supporting documents (eg a medical certificate)  were provided. 

18.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant failed to set out any valid ground to challenge the Board’s decision or pinpoint any error in the JR Decision. 

19.  In the Summons and supporting affirmation for extension of time before this Court, she failed to provide any ground to reverse the JR Decision save for saying that she disagreed with the Judge’s decision. 

20.  In her written submissions, she only repeated the factual allegations of her claim.  Although she complained that the Board had made many errors in its decision and the Judge had failed to consider her real problem, the complaints are in vague and general terms only. It is well-established that general assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

21.  It is clear from the Board’s decision that the applicant was not a reliable witness as her evidence was vague and implausible.  The Board is entitled to reach its findings and conclusion and the court would only intervene when there is valid public law ground.  As with the Judge, we see none in this case.

22.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 July 2022.